Judge: Serena R. Murillo, Case: 19STCV35950, Date: 2022-08-30 Tentative Ruling
Case Number: 19STCV35950 Hearing Date: August 30, 2022 Dept: 29
Guixi Zou, et al. v. UC
Regents, et al.
Tuesday, August 30, 2022
TENTATIVE
Defendant The
Regents of the University of California’s motion for a protective order is
GRANTED in part and DENIED in part. The protective order is denied as to the
Special Interrogatories, but granted as to the depositions of (1) Co-Chair of
the Emergency Response Committee in November 2018 at UCLA Santa Monica Medical
Center, Mackenzie Roesti, R.N.; (2) Margaret Burns, R.N.; and (3) Patricia
Nwajuaku, M.D. only, and denied as to the rest of the depositions at issue in
this motion.
Legal
Standard
The court shall
limit the scope of discovery if it determines that the burden, expense, or
intrusiveness of that discovery clearly outweighs the likelihood that the
information sought will lead to the discovery of admissible evidence. The
court may make this determination pursuant to¿a motion for protective order by
a party or other affected person. This motion shall be accompanied by a
meet and confer declaration under Code of Civil Procedure section
2016.040. (Code Civ. Proc.,¿§ 2017.020(a).) “A meet and confer
declaration in support of a motion shall state facts showing a reasonable and
good faith attempt at an informal resolution of each¿issue presented by the
motion.” (Code Civ. Proc.,¿§ 2016.040.)¿¿
The court shall
restrict the frequency or extent of use of a discovery method provided in if it
determines either of the following:¿
1.
The discovery sought is unreasonably
cumulative or duplicative, or is obtainable from some other source that is more
convenient, less burdensome, or less expensive.¿
2.
The selected method of discovery is unduly
burdensome or expensive, taking into account the needs of the case, the amount
in controversy, and the importance of the issues at stake in the litigation.¿
¿
(Code Civ.
Proc.,¿§ 2019.030(a).)¿
Code of Civil
Procedure sections¿2030.090(a), 2031.060(a),¿and 2033.080(a) provide that a
party upon whom interrogatories, inspection demands or request for admissions
have been propounded may “promptly” move for a protective order. In
addition, if a responding party seeks a protective order on the grounds that
interrogatories or requests for admissions are unwarranted, the propounding
party has the burden to justify more than 35 requests. (CCP §§
2030.040(b), 2033.040(b). Furthermore, Party seeking protective order has
burden of showing¿good cause for order sought. (Fairmont Ins. Co. v.
Superior Court¿(2000) 22 Ca1.4th 245, 255.)¿
CCP section
2025.420(a) provides that “[b]efore . . . a deposition, any party, any
deponent, or any other affected natural person or organization may promptly
move for a protective order.” (CCP § 2025.420(a).) “The court, for
good cause shown, may make any order that justice requires to protect any
party, deponent, or other natural person or organization from unwarranted
annoyance, embarrassment, or oppression, or undue burden and expense.”
(CCP § 2025.420(b).) In fashioning a protective order, a court has the
discretion to, among other things, order “[t]hat the deposition not be taken at
all,” “[t]hat the deposition be taken only on certain specified terms and
conditions,” or “[t]hat the deponent’s testimony be taken by written, instead
of oral, examination.” (CCP § 2025.420(c)(1), (5), (6).)
The burden of proof is on the party seeking the protective order to
show “good cause” for the order he or she seeks. (Fairmont Insurance
Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) A motion for a
protective order “shall be accompanied by a meet and confer declaration under
Section 2016.040.” (Code Civ. Proc., § 2030.090.) “A meet and
confer declaration in support of a motion shall state facts showing a
reasonable and good faith attempt at an informal resolution of each issue
presented by the motion.” (Code Civ. Proc., §
2016.040.)
Discussion
A.
Meet
and Confer
Defendant provides the declaration of Nicole
Rossi-Standley, Defendant’s Counsel, who provides she has met and conferred on all the issues
raised in this motion. On July 12, she sent a letter addressing the issues in a
reasonable and good faith attempt to resolve the issues outside of court. (Rossi-Standley Decl., ¶ 35; Exh. X.) However, the meet and confer
letter went unanswered. The Court finds that Defendant has sufficiently met and
conferred as required.
B.
Protective
Order
Defendant moves for a protective order
arguing that throughout this case, plaintiffs have been abusing the discovery
process by propounding an excessive amount of written discovery, currently totaling 954 demands, or 1,323 demands if each
sub-question is included, and serving 54 notices for deposition.
Defendant further argues that Plaintiffs’ discovery requests are unreasonably
cumulative, duplicative, and unduly burdensome and expensive, as well as
constitute unwarranted annoyance, oppression and undue expense.
1.
Interrogatories
Defendant argues that Plaintiffs
have propounded a burdensome amount of written discovery, 954 demands, or 1,323
if each sub-question is counted, which is unwarranted. Recently, Plaintiff
Andrew Zou recently propounded an additional 2 sets of Special Interrogatories
totaling 202 requests, which are
the subject of this motion. Since these sets have been recently propounded,
this motion is timely under section 2030.090 subdivision (a). (Packer Decl. ¶
3.) Defendant argues that these interrogatories are cumulative and duplicative,
and constitute unwarranted annoyance, oppression, and undue burden and expense, since these questions either have already
been asked and responded to through other sets of written discovery, or
plaintiff had the opportunity to ask these questions to the appropriate
witnesses during numerous prior depositions. (Rossi-Standley Decl., ¶ 3.)
Defendant has already incurred an extraordinary amount of undue burden and
expense based on the extensive discovery which has already been propounded and
responded to thus far. (Packer Decl., ¶ 3.)
Defendant further argues that the first set
at issue contains 166 specially prepared interrogatories regarding units of
blood products, the recollections of anesthesiologist John Shin, M.D., Amniotic
Fluid Embolism, hospital policies, and equipment. Plaintiffs’ counsel’s
declaration states that the number of questions is warranted “because the
decedent’s medical records do not contain the information requested by these
interrogatories,” however, Defendant contends these topics have been discussed
ad nauseum at numerous depositions taken by Plaintiffs, including the
deposition of Dr. Shin. Furthermore, the majority of these questions regarding
blood product units are merely rephrased questions from Special Interrogatories
(Set No. 7) propounded by Guixi Zou, in an attempt to resolve the errors
propounded in Set No. 7 which originally left 2 digits off the 12-digit blood
product unit numbers, making it impossible for defendant to identify the unit
in the interrogatories and wasting defendant’s time at great expense. (Rossi-Standley
Decl., Exh. N.) Defendant makes this Motion for a Protective Order on the
grounds that these 166 specially prepared interrogatories are unwarranted per section 2030.040 subdivision (b).
Defendant further argues that the
second set contains 36 specially prepared interrogatories regarding
anesthesiologist Dr. Shin’s recollection, Dr. Estrada’s recollections, and Dr.
Goldstein’s recollections. Defendant argues that Plaintiffs’ counsel questioned
Dr. Shin at length during his deposition from 10:04 a.m. to 5:31 p.m.,
questioned Dr. Estrada at length during his deposition from 9:29 a.m. to 2:42
p.m., and questioned Dr. Goldstein from 10:17 a.m. to 11:32 a.m. (Rossi-Standley
Decl., Exh. M.) Thus, Defendant argues this second set of interrogatories is
unwarranted.
In opposition, Plaintiffs argue the discovery is necessary. As to special Interrogatories 6 to 107,
Plaintiffs argue the simple question is when was blood transfused (the time the
blood product entered decedent’s body) and not the time it was issued. The
medical records do not contain any information when blood products entered the
decedent’s body despite the policy at defendant’s hospital that a Transfusion
Record was to be completely for each unit of blood product transfused.
Defendant’s motion only references the time that blood products were ordered or
when the blood products were issued by the blood bank and not when the blood
products actually went into the decedent’s body. Special Interrogatories 6 to
107 (101 of the 166 special interrogatories) deal exclusively with the
transfusions of blood products which requires the blood products be verified
and then the transfusion started. The medical records and responses to
discovery do not identify when any blood product was verified or when (start
time) any blood product was transfused. Plaintiffs have deposed a number of
witnesses. Not a single witness has testified when any specific blood product
was verified or the start time of any blood product transfusion. As to the
remainder of the Special Interrogatories, Plaintiffs argue that the medical
records and previous responses to discovery do not contain the information.
Further,
Plaintiffs argue that the discovery is not unduly burdensome, taking into
account the needs of the case, the amount in controversy, and the importance of
the issues at stake in the litigation. This case involves the dispute whether the patient had
tachysystole or even a placental abruption. Defendant denies that the patient
suffered tachysystole or placental abruption despite Dr. Crookes’ own operative
note which includes a post-operative diagnosis of placental abruption. During
the C-section, there is no doubt that the patient’s condition changed for the
worse. However, the medical records are silent as to the timing of the events
that led to the massive transfusion protocol being initiated and the ensuing
cardiac arrest. Further, the amount of damages sought in this case is quite
substantial. The decedent was 32 years of age and had received a post graduate
degree from University of Southern California. The decedent was a full-time
professor at the University of Utah at the time of her passing. She was earning
in excess of approximately $180,000 a year. The death of a 32-year-old woman
and the need of discovering what occurred, when it occurred, what was done in
response to such occurrence, and why further efforts were not timely undertaken
are reasonable and necessary.
The
Court finds that the discovery is not unduly burdensome, taking into account
the needs of the case, the amount in controversy, and the importance of the
issues at stake in the litigation.¿ (Code Civ.
Proc.,¿§ 2019.030(a).)¿ Further, the Court does not find that the requests are
duplicative as Plaintiffs have explained that the special interrogatories relating to the
blood transfusions were drafted in response to the argument by defense counsel
to the court that the word “received” is ambiguous. Plaintiffs have now
clarified the requests. Additionally, Defendant even notes the questions are
rephrased due to errors, meaning they are not duplicative. Moreover, Defendant
has not explained how the rest of the interrogatories in set one are cumulative
and duplicative, only stating in a conclusory fashion that they are.
Additionally, as to set two of the interrogatories, while Defendant has
attached a chart that shows the duration of time of the deponents named above,
the testimony is not attached for the Court to determine whether these
interrogatories are unwarranted when comparing these questions to the prior
testimony. Lastly, Plaintiffs have provided enough justification for their need
of this discovery, as the answers to these questions are not in the medical
records or responses to the discovery, and due to the needs of the case,
importance of the issues and amount in controversy.
2. Depositions
Defendant also moves for a
protective order precluding the deposition of ten of its employees or
description of employees. It argues that plaintiffs have issued 54 notices for
deposition to Defendant. Defendant has produced witnesses for 26 depositions to
date, with an additional 4 upcoming depositions scheduled. (Packer Decl. ¶¶
5-6.) Defendant argues that many of these depositions have resulted in
cumulative and duplicative testimony, and are tactics by plaintiffs to cause
unwarranted annoyance and oppression to defendant. (Rossi-Standley Decl. 6.)
Further, these numerous depositions have caused undue burden and expense for
defendant, since it takes a great deal of time and expense to coordinate with
multiple departments in the hospital to determine which individual is
responsive to each plaintiffs’ many descriptions in deposition notices, prepare
the witnesses for deposition, and take the witness’ time away from working as a
healthcare provider for the deposition to occur. (Rossi-Standley Decl. ¶ 7.)
The
Court finds that Defendant’s arguments fail to meet its burden of establishing
the burden and intrusiveness of the discovery so as to necessitate the
issuance of a protective order on these grounds. The depositions may lead to
the discovery of admissible evidence as to whether Defendant’s employees
improperly managed Decedent’s labor. For example, Plaintiff argues that a
serious issue existed as to
the database concerning a template used by Decedent’s obstetrician regarding
the obstetric history. Plaintiff should be allowed to
take these depositions and not simply rely on Defendant’s contention that these
depositions would be cumulative. Further, without more aggravating
circumstances, the Court is unable to conclude that Plaintiffs’ discovery
requests are tactics to cause annoyance or oppression.
However, as to the depositions of
(1) Co-Chair of the Emergency Response Committee in November 2018 at UCLA Santa
Monica Medical Center, Mackenzie Roesti, R.N.; (2) Margaret Burns, R.N.; and
(3) Patricia Nwajuaku, M.D., because Plaintiffs have already deposed these
persons, and have not provided any grounds in their opposition to show good
cause to depose them again, the protective order is granted as to them only.
C.
Sanctions
The
court shall impose a monetary sanction under Chapter 7 (commencing with Section
2023.010) against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one subject
to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.”
Sanctions are denied as both
parties have acted with substantial justification.
Conclusion
Based on the
foregoing, Defendant’s motion for a protective order is GRANTED in part and DENIED
in part. The protective order is denied as to the Special Interrogatories, but
granted as to the depositions of (1) Co-Chair of the Emergency Response
Committee in November 2018 at UCLA Santa Monica Medical Center, Mackenzie
Roesti, R.N.; (2) Margaret Burns, R.N.; and (3) Patricia Nwajuaku, M.D. only,
and denied as to the rest of the depositions at issue in this motion.
Moving party is
directed to give notice.